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Supreme Court of Japan not judging  -  下に日本語版あり
A Japanese left-behind father who received a Supreme Court of Japan ruling recently approached Kizuna Child-Parent Reunion. He summarized his legal petition and the ruling and requested that Kizuna publish this article.
The Supreme Court ruling is attached.
"The father" is the author. Kizuna CPR is the editor.
subject: The Supreme Court of Japan has decided not to judge (to ignore) the arguments raised about violation of the Constitution of Japan, UNCRC, and the principle of the Hague Abduction Convention caused by parental child abduction within Japan.

Kizuna Child-Parent Reunion, Kizuna CPR, is working toward restoring the human rights of children in Japan.

Kizuna CPR reports a Supreme Court ruling that does not judge (ignores) the arguments raised about violation of the Constitution of Japan, UNCRC, and the principle of the Hague Abduction Convention caused by parental child abduction within Japan.


1. Outline of the case

The incident is a parental child abduction case where a father, a mother, and a child were living together. The mother abducted the child who was 3 years old at the time without any consent. The father found that the child was abducted when he returned home from work, made a complaint overnight following a lawyer's advice, and filed a petition to the family court the next day. According to the father, even though he knew that it was better to sleep after the petition was finished, he could not even take a nap.

In this case, there is no domestic violence (DV). Both the father and the mother had been raising the child while living together, and it has been certified in both the family court and the high court that the primary caretaker cannot be determined.

The father appealed to the Supreme Court, since both the family court and high court judgments of provisional remedies were "in favor of the abductor."


2. Judgment of Supreme Court

On January 21, 2019, about 8 months after the abduction, in response to the special appeal brought by the father, the Supreme Court of Japan ruled as follows:

"The reason for this appeal is a claim of unconstitutionality, but the substance claims merely a violation of laws and regulations and does not fall under the grounds of a special appeal." (This expression is notorious as a so-called "turn away at the door.")


3. The arguments raised as the reason for the special appeal

According to the father, the reason for this special appeal was written with the involvement of a constitutional scholar.


In the reason for the special appeal, the conclusion is summarized as follows.

Parental child abduction not only infringes the child's liberty of residence guaranteed by Article 22, paragraph 1 of the Constitution of Japan, but it also infringes the child's right to live with his/her parents as a guaranteed personal right of the latter part of Article 13 of the Constitution of Japan in the sense of having a serious effect on personality formation. It also infringes the respect of individuals (the first sentence of Article 13 of the Constitution). In addition, parental child abduction violates The United Nations Convention on the Rights of the Child (UNCRC) and the principle of the Hague Abduction Convention. It is also highly illegal in the view of other countries.


The arguments raised regarding the UNCRC are summarized as follows.

The first sentence of UNCRC Article 9 (1) indicates that "States Parties shall ensure that a child shall not be separated from his or her parents against their will." However, parental child abduction is a separation of children from the left-behind parent, contrary to the intention of the left-behind parent. Therefore, parental child abduction is contrary to the first sentence of Article 9 (1) of the UNCRC. Moreover, since it cannot be said that parental child abduction is "for the best interests of the child," parental child abduction also violates the principle of Article 9 of the UNCRC.

The second sentence of Article 18 (1) of the UNCRC states that "Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child." The third sentence states that "The best interests of the child will be their basic concern." However, even if it was done in a peaceful way, parental child abduction has an "influence on the personality formation" of a child and an "adverse effect on the spirit," and it cannot be said that parental child abduction is an act in "The best interests of the child." Therefore, parental child abduction is in violation of Article 18 of the UNCRC.


The argument raised regarding the Hague Abduction Convention is summarized as follows.

The Hague Abduction Convention establishes the return principle concerning adverse effects given to children by parental child abduction. There is no difference in adverse effects given to children even if the abduction is domestic. Therefore, even if it is a domestic parental child abduction, not returning the child to the original residence violates the principle of the Hague Abduction Convention.


In addition, the domestic and overseas criticism of parental child abduction in Japan is touched upon as follows.

Regarding this, it has been pointed out that the current situation "in favor of the abductor" in Japan remains the same even after the formal implementation of the Hague Abduction Convention on April 1, 2014.

For example, the following was reported by Sankei News (Attachment 5) dated April 15, 2017:

"There is a growing domestic and overseas voice to point out the inadequacy of Japan's prevention and resolution system over child abduction from one parent. At the current Diet session, a concern was raised that "Abduction will be continued as it stands," and organizations of left-behind parents also requested the government to take measures. ... While Japan joined the Hague Abduction Convention, domestic parental child abduction is still practically accepted, and rather it is in a state "in favor of the abductor" (Attachment 5, page 1)


Furthermore, in the first place, it is impossible to overlook the fact that the operation of the Hague Abduction Convention itself is being criticized by foreign countries. In other words, specifically, it can be pointed out that the US Department of State may designate Japan as a country that is noncompliant with the Hague Abduction Convention and impose sanctions to bring about compliance. That is, on May 16, 2018, the US Department of State designated Japan for the first time as noncompliant after the start of Japan's implementation of the Hague Abduction Convention on April 1, 2014. (Attachment 6). In response to such designation, the Japanese press has been calling for improvements such as a "response to parental child abduction" (Attachment 7).


Even with the quotations and summary given above, it is unlikely that this is a matter that the Supreme Court of Japan could avoid judgment on.


4. Discussion

(1) Japan may become a non-compliant country of the Hague Abduction Convention

[note that the US Dept of State cited Japan as non-compliant on May 16, 2018.]

The Implementing Act of the Hague Abduction Convention "Act for Implementation of the Convention on the Civil Aspects of International Child Abduction" states " "Removal" means to have a child depart from the state where he/she holds his/her habitual residence, for the purpose of having the child leave said state;" (Article 2, item 3). Therefore, it does not apply to domestic parental child abduction. It is the same even for a family of foreign nationals. Even for a couple who has foreign nationality, the Implementing Act of the Hague Convention will not apply to domestic parental child abduction in Japan.

Therefore, according to the current domestic court practice, if you abduct your child in two stages, at first if you abduct your child within Japan and remove parental authority and custody from the other parent, and then cross the border, you can abduct your child without regard to the Hague Abduction Convention. Indeed, it seems that such a situation could occur. For this reason, there is a danger that Japan will be used for the purpose of evading the Hague Abduction Convention. If the Supreme Court of Japan or the Japanese government do not change current family court practices to align with the Hague Abduction Convention, Japan's international trust will further decline.


(2) Increase in the number of child custody cases and infringement of human rights of children

According to judicial statistics, the number of civil and administrative cases is about half (48%) in 2017 compared with 2003. Whereas the number of custodial cases in all family courts has increased drastically from 2003 to 2017, it is about 3 times more for visitation meetings, about 3.5 times more for child handover, about 3.8 times more for designation of a custodian, and about 3.6 times more for provisional child handover.

In custody disputes, it cannot be denied that those who actually hold custody will be in an advantageous position. Moreover, if only those who abducted the child first with impunity will be in an advantageous position, it is natural that the number of custodial cases will increase. In other words, the fact that the Supreme Court does not judge (ignores) the illegality of parental child abduction brings about more parental child abductions. Therefore, it is expected that the number of parental child abductions will increase in the future.

If the number of parental child abductions increases in the future, at some point it is inevitable that these will exceed the processing capacity of the Family Court judiciary, and the system will become dysfunctional.

If the Family Court Judiciary falls into dysfunction, it might lose the way to rescue human rights violations against children.


In order to restore the human rights of children in Japan, Kizuna Child-Parent Reunion, Kizuna CPR, reports this article.


主題: 日本国最高裁判所は、国内の子の連れ去りが、憲法、子どもの権利条約、ハーグ条約の理念に違反するとの問題提起に対し、これを審理判断しない(無視する)との判断を示した





1. 事件の概要





2. 最高裁判所の判断





3. 特別抗告理由書における問題提起




















4. 考察












    添付資料  5                        添付資料 6                    添付資料 7                     最高裁決定

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